Vincent v. United States

• Decision Date: 04 November 1964
• Docket Number: No. 17591.,17591.
• Citation: 337 F.2d 891
• Parties: Nathaniel VINCENT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

337 F.2d 891 (1964)

Nathaniel VINCENT, Appellant, v. UNITED STATES of America, Appellee.

No. 17591.

United States Court of Appeals Eighth Circuit.

November 4, 1964.

Samuel Raban, St. Louis, Mo., for appellant.

John Newton, Asst. U. S. Atty., St. Louis, Mo., Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., for appellee.

Before VAN OOSTERHOUT and MEHAFFY, Circuit Judges, and DAVIES, District Judge.

MEHAFFY, Circuit Judge.

The defendant was tried to a jury and found guilty under a two-count indictment and was sentenced to a term of ten years upon each count to run consecutively.

The first count of the indictment charged the defendant with unlawfully carrying a quantity of heroin from New York City to St. Louis County on September 19, 1963 in violation of 26 U.S. C.A. § 4724(b). The second count charged the receipt and concealment of the same drug on that date knowing that it had been unlawfully imported into the United States in violation of 21 U.S.C.A. § 174.

The defendant offered no testimony in his defense and the evidence presented by the government may be briefly summarized. For several months prior to his arrest, federal narcotic agents had knowledge of the defendant's reputation for engaging in narcotic traffic. Shortly before his arrest they had knowledge that he was flying to New York once or twice a week under an assumed name for the purpose of procuring narcotics. On September 19, 1963, the day of his arrest, defendant was observed by an airline ticket agent boarding a non-step jet flight to New York City without luggage. He had purchased his ticket under the name of Jesse Cox. Narcotic agents were advised and two federal agents and four detectives from the St. Louis Metropolitan Police Narcotics Squad went to the airport to intercept defendant upon his scheduled 8:40 p. m. return to St. Louis. One of the officers had a picture of the defendant and upon their arrival at the airport they took positions which would enable them to observe the defendant when he deplaned. They did observe him as he left the plane, entered the terminal, and proceeded to walk down the concourse. Within a few feet after entering the terminal, the defendant apparently recognized one of the officers stationed nearby. The defendant continued walking but paused momentarily at a trash receptacle and was seen by two of the officers to deposit in the receptacle a small, white cubical package. Immediately thereafter these two officers went to the trash receptacle and retrieved the package deposited by defendant. The package contained 25 individual, double envelopes of white powder analyzed later to be heroin. After continuing his walk down the concourse, and nearly simultaneously with the officers' going to the receptacle for recovery of the heroin, one of the other officers arrested the defendant and took him to the men's rest room where he was thoroughly searched by the remaining officers. While this search was in progress, the two officers who retrieved the package of heroin joined the others in the rest room. No other narcotics were found on the defendant. He was taken to the St. Louis Police Headquarters for booking. He first denied any knowledge concerning the package of heroin the officers had recovered, but within ten minutes he confessed having purchased and transported the narcotics from New York as well as divulging the identity of his source. Four days later he was turned over to the federal authorities for arrest and arraignment for breach of federal narcotic laws. He was taken before the U. S. Commissioner on the day the federal authorities took custody of him, and upon being informed of the complaint and of his rights waived preliminary hearing and was released on bond.

In seeking reversal of his conviction, defendant contends that the District Court erred:

1. In changing his sentence;

2. By amending Count 2 of the indictment;

3. In failing to set aside his waiver of preliminary hearing; and

4. By admitting into evidence the narcotics and confession which were obtained as a result of an alleged illegal arrest.

When defendant was brought before the court for sentencing, the court fixed his punishment at a total of twenty-five years imprisonment. He was sentenced to twenty years on Count 1 of the indictment, five years on Count 2 to run consecutively and directed by the court to "report to the Marshal in the meantime." Immediately following sentencing, there was a conference at the bench between the court and counsel, whereupon the court instructed that the defendant be returned.

The offense under Count 1 allows a maximum sentence of ten years, and the court's twenty year sentence was excessive. Recognizing this mistake, the court recalled the defendant who had not as yet left the courtroom and resentenced him to a maximum imprisonment of ten years on Count 1, while imposing a ten year term on Count 2, to run consecutively, for a total sentence of twenty years.

The net effect of the sentence was an over-all reduction of five years. The court, of course, properly corrected its illegal sentence insofar as Count 1 was concerned by reducing it to ten years. Rule 35 of the Federal Rules of Criminal Procedure provides that the court may correct an illegal sentence at any time, or reduce a sentence within sixty days after imposition. Orrie v. United States, 302 F.2d 695 (8th Cir. 1962), cert. denied 371 U.S. 864, 83 S.Ct. 124, 9 L.Ed.2d 101 (1962), and cases cited; Machin v. United States, 290 F.2d 621 (8th Cir. 1961).

Defendant contends that the sentences on the two counts were for separate, distinct offenses and that the court improperly increased the sentence imposed under Count 2 rather than validly exercising its power under Rule 35 to reduce the sentence under Count 1. He relies primarily on United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931), which stands for the general proposition that the court during the term sentence was imposed may modify the sentence provided the punishment "be not augmented" after the prisoner has commenced the service of sentence. However, in the instant case the defendant had not commenced service of his sentence at the time of correction by the trial court.

18 U.S.C.A. § 3568 provides that sentence of imprisonment of any person convicted of an offense in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory or jail for service of said sentence, and further that if such person shall be committed to jail or other place of detention to await transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention. Here, the defendant had not been committed to a jail or other place of detention to await transportation to the place at which his sentence was to be served. As a matter of fact, he had only been told to report to the Marshal, and after a brief conference with counsel the court recalled defendant before the bench to correct his sentence. In Oxman v. United States, 148 F.2d 750, 159 A.L.R. 155 (8th Cir. 1945), cert. denied 325 U.S. 887, 65 S.Ct. 1569, 89 L.Ed. 2001 (1945), the defendant was sentenced to six years' imprisonment, whereupon he was taken to the marshal's office in the same building and locked up while other co-defendants were being sentenced. Sometime later in the day, after more than an hour, the trial court ordered the defendant returned to the courtroom, increasing his sentence from six to ten years. This Court there recognized that a sentence cannot be increased once service has commenced, but held that the trial court had the power to resentence the defendant increasing the severity of the sentence so long as it was done prior to commencement of service. See also Kelley v. United States, 235 F.2d 44 (4th Cir. 1956) and United States v. Byars, 290 F.2d 515 (6th Cir. 1961), cert. denied 368 U.S. 905, 82 S.Ct. 185, 7 L.Ed.2d 99 (1961), reh. denied 368 U.S. 872, 82 S.Ct. 65, 7 L.Ed.2d 73 (1961).

Because the defendant had not been transferred from the court's custody to a place of detention at the time his sentence under Count 1 was reduced and his sentence under Count 2 increased to a permissible duration, service of the sentences had not officially commenced. Therefore, defendant's rights were not impinged by the trial court's timely alteration of his sentences.

The defendant was charged in Count 1 with unlawfully carrying heroin from New York to St. Louis County and in Count 2 with the "receipt and concealment" of the same drug on the same date in violation of separate statutes under the respective counts. At the conclusion of the opening statement by the government attorney, the defendant moved to dismiss the two-count indictment, or, in the alternative, to require the government to elect on which count it would proceed. Defendant argued that it was inconsistent to charge him with both the transportation of the narcotic to St. Louis County in Count 1 and a receipt from himself of the same drug at that location in Count 2.

There is no question but that Counts 1 and 2 of the indictment charge two separate and distinct offenses under different statutes. Each has different evidentiary requirements even though arising from one common transaction. Gargano v. United States, 140 F.2d 118 (9th Cir. 1944); Harris v. United States, 248 F.2d 196, 201 (8th Cir. 1957), aff'd 359 U.S. 19, 79 S.Ct. 560, 3 L.Ed.2d 597 (1959), reh. denied 359 U.S. 976, 79 S.Ct. 873, 3 L.Ed.2d 843 (1959).

The trial court dismissed that portion of Count 2 which charged defendant with the unlawful receipt of the drug. In its instruction to the jury, the court stated that it was the government's position under Count 2 that the defendant "concealed" the same drug illegally transported under Count 1 knowing that it had been unlawfully imported into the country. The effect of...